France’s top court for administrative justice — Conseil d’État — banned the use of surveillance drones by the Paris police for tracking people in public areas who were flouting social distancing norms, citing privacy issues. Conseil d’État held that the use of drones by police will remain suspended until they are equipped with technology which makes it impossible to film people so that they can not be identified, or until the CNIL (Commission nationale de l’informatique et des libertés, France’s privacy regulator) allows such drone usage by a ministerial decree. Bloomberg first reported this.

The order came after France based advocacy organisations Human Rights League, and Quadrature du Net filed a lawsuit against such drone usage. “This decision is a major victory against drone surveillance. It sets as illegal any drone equipped with camera and flying low enough, as such a drone would allow the police to detect individuals by their clothing or a distinctive sign,” Quadrature du Net said in a statement. Both the organisations had initially approached Paris’s administrative court, but the court had rejected their prayer, according to Conseil d’État’s order.

Not trying to identify people, no SD cards to record footage: French government

France had been using drones since as early as March to track people violating social distancing norms, and the government, in a directive on May 14 (after the advocacy groups had filed the lawsuit), had said that drones were not used to identify people, but only to detect public gatherings to enforce the lockdown and disperse large gatherings of people. The state further said that the drones were flown at a height of 80 to 100 metres, and were not fitted with a memory card and thus could not capture and save images. The zoom function in the drone’s camera is also never activated, the state claimed.

It also said that only one drone was used at a time, and conducted surveillance for two to three hours in a day. French police officials were present on site while the drones were flown, and staff in the information and command centre kept an eye on the proceedings as well. The drone pilot guided the drone either via a video screen or by visual sight only over the places instructed by police officials. The feed from the drone’s camera was also transmitted to the command centre in real time so that they can take decisions such as broadcasting messages via the drone’s loudspeaker to people on the site.

No technical way to stop police from identifying people: French court

In response, the court noted that since drones have an optical zoom feature and can be flown below 80 metres if the need arises, there is no technical way to avoid collecting people’s personal data. As a result, the data collected as part of this exercise must be regarded as being personal, the court held, relying on the EU directive of April 2016, on the protection of individuals with regard to the processing of personal data by competent authorities. It also held that the the real time viewing of drone footage at the command centre to carry out administrative tasks constitutes processing of data, under the April 2016 directives.

Since this data processing is being on behalf of the state, it also falls under the purview of France’s Data Protection Act, under which, data processing can be authorised by order of the competent minister or ministers, taken after “reasoned and published opinion of the National Commission for Data Protection (article 31)”, the court said. Carrying out such processing of data on behalf of the state in the absence of a regulation that authorises the state to do so, manifests an “illegal attack on the right to respect for private life,” the court said, and held that operations can only continue after the CNIL lays down specific rules before allowing it.

Are operations in India different?

France’s decision should be looked at closely, especially in India, where several police forces have been surveilling streets using drones to enforce the nationwide lockdown. Drone operations in France are very similar to the ones in India, where police officials accompany drone pilots on the ground, and the footage from the drone is relayed to a central command centre for further real-time surveillance. However, there are some glaring differences in operations between the two countries:

  • In Mumbai, some drone operators were not accompanied by police: At least in Mumbai, some drone pilots, who have been chosen to fly over residential properties, are often not accompanied by the police, and are at liberty to click pictures in case they spot a violation. They can, however, not record footage.
  • SD cards are used in India with different data sharing and deletion protocols: In France, the government has said that SD cards are not used so as to restrict capturing of any footage while in India, in almost all instances that we have reported on, drones have an SD card on which footage is allowed to be recorded. Protocol around sharing and deletion of this footage has been different in different states. For instance, in Delhi and Telangana, a police official ensures that footage is deleted from the pilot’s SD card after transferring it to the police’s systems. However, in Kerala, the police only “asks” the pilots to clear the footage and it isn’t clear whether there is any further oversight.
  • Absence of a data protection regulator in India: The French court said that drone usage will only be permitted once the country’s privacy regulator lays down rules around its usage. This, however, will currently not be possible in India, because the country doesn’t have a privacy regulator yet, by virtue of not having a privacy law. Moreover, the Personal Data Protection Bill, 2019 which is currently being deliberated upon by a Joint Parliamentary Committee, has provisions to exempt the police to use footage recorded from a drone to arrest people, as Vaneesha Jain, Associate Partner at Saikrishna & Associates, had written earlier this year.